1997 PLP 366 (CLC)

BASHARAT AHMAD SHAIKH, J.‑‑‑The facts of the case are that respondents Nos.2 to 4, Central Board of Revenue of Pakistan, the Collector of Customs (Appraisement) and Assistant Collector (Appraisement), Karachi, were respondents in a writ petition filed by Amin Spinning Mills appellant herein. The High Court decided to proceed ex parse against the aforementioned three functionaries of the State on 15th of September. 1993 On 20th of June 1995 the aforesaid three functionaries filed an application for setting aside ex parse order of 15th of September 1993 and for joining the proceedings. The application has been accepted. The order passed by the High Court has led to filing of the present appeal, with leave of the Court: Ch. Muhammad Afzal, the learned counsel for the appellant‑Company, submitted that the application for setting aside the order of proceeding ex parte was moved after one and a half years and was oil the face of it hopelessly time barred. He furthers submitted that in the application no ground worth the name was incorporated in the application. It was only stated that absence, was not intentional and important law points were involved in the writ petition. Mr. Liaqat Ali Khan, the learned counsel for respondents Nos.2 to 4, submitted that law has not prescribed any time limit for moving an application for vacating an order for proceeding ex parte against the defendant. He also defended the order of the High Court by submitting that the reasons recorded by the High Court are valid. In the order under appeal, the High Court has expressed the view that there were valid grounds for vacating the ex parte order. It has also observed that even otherwise the writ petition is at the stage of filing of written statement, which was to be filed by respondent No.5, and that the respondents could join the proceedings without intervention of the Court. We notice that when ex parte order was recorded by the High Court there were only four respondents in the writ petition but subsequently two more respondents were added with the permission of the Court, namely, Azad Jammu and Kashmir Council, Azad Government of the State of Jammu and Kashmir and the Government of Pakistan. The newly added respondents were asked to file written statement and, as the order of the High Court shows, respondent No.5 had not yet filed the same when the application under dispute was moved. Both the learned counsel for the parties do not contest the legal proposition that a defendant or a respondent can join at any hearing of the case in spite of the ex parte order and can start from the stage. However, it is contended by the learned‑counsel for the appellant, Ch. Muhammad Afzal, that respondents Nos.2 to 4 could not file the written statement because the stage of filing written statement had already passed so far as respondents Nos.2 to 4 are concerned. On the other hand submission of Mr. Liaqat Ali Khan, the learned counsel for respondents Nos.2 to 4, is that the Court has to see the stage of the case and not the stage of a particular respondent. The principle is that if an ex parte order has been passed against a defendant he cannot ask for re‑opening of the proceedings unless he shows sufficient cause but he can join at any time from the stage which has already been reached. The purpose to be thus achieved is that process of law is not hindered. In our view the principle stated above has to be liberally construed as it favours decision on merits which is the policy of law. We, therefore, hold that the principle that a defendant can join at hearing of the case from the stage of appearance is a reference to the stage of the case and not of a particular defendant or respondent. This does not create any hindrance in progress of the case. Order of the High Court shows that respondent No.5 was yet to file his written statement and the learned Judge in the High Court allowed respondents Nos.2 to 4 to file their written statement alongwith the written statement of respondent No.5. It is clear from the order that steps already taken were not required to be retraced and the case was to go ahead from the stage where it had reached. Consequently we uphold that part of the order of the High Court by which respondents Nos.2 to 4 were allowed to file their written statement alongwith written statement of respondent No.5. In these circumstances the question whether sufficient cause existed or not, and whether application moved by respondents Nos.2 to 4 was within time or not become academic and need not be decided. For the reasons stated above, the appeal is rejected. The parties will bear their respective costs throughout. A.A./137/SC(AJ&K) Appeal dismissed.